58 Barb. 216 | N.Y. Sup. Ct. | 1870
The defendant seeks to apply to this case the rule of damages which would obtain if the plaintiff could not have procured the goods to be sent at all; as, for instance, by reason of there being, no other vessel, or an embargo being laid, or a canal freezing. (Bracket v. McNair, 14 John. 170. O'Connor v. Foster, 10 Watts, 418.) But that rule does not prevail when the party can send by another conveyance. Then he must do so, and he will be entitled to recover, as was allowed here, the difference between the price at which the defendants undertook to carry the property, and the price which the plaintiffs were compelled to pay for its transportation. (Ogden v. Marshall, 4 Seld. 340.)
The letter of the defendants, of November 20, 1865, can scarcely be deemed an offer. Neither vessel, rate nor time was mentioned. And from the testimony as to the interviews between the parties, it is plain that the defendants did not intend to make any definite proposition on the subject. I think, therefore, that the referee’s finding, that the vessel by which the plaintiffs sent was the only one offering or willing to take the petroleum after the sailing of the Contest, cannot be disturbed.
We think the rule as to the form of the judgment laid down in 7 Wallace, 258, not binding on the State courts, and that it is not the correct one, but simply leads to great inconvenience, without any practical advantage.
The judgment should be affirmed.
Ingraham, P. J., and Cardozo, Justice.]